Robbins v. Usher et al
Filing
14
ORDER denying 13 Motion to Report on Case; denying 13 Motion for Hearing. The Clerk is directed to forward copies to the USM for service upon the defendants. Signed by Magistrate Judge G. R. Smith on 12/01/2011. (lmm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
KELVIN J. ROBBINS,
Plaintiff,
v.
Case No. CV411-193
USHER RAYMOND, IV, et al.,
Defendants.
ORDER
Proceeding pro se, Kelvin J. Robbins brought this copyright
infringement case against, among others, “Artits-Usher,” doc. 1 at 1,
later named “Usher-Artist.” Doc. 12 at 1. The Court surmises that he is
referring to Usher Raymond, IV, a/k/a “Usher,” who is also being sued
for copyright infringement in Straughter v. Raymond, 2011 WL 3651350
at * 3 (C.D. Cal. Aug. 19, 2011) (denying summary judgment to Usher
defendants; experts agreed that songs in question were substantially
similar to each other); see also http://www.lasisblog.com/2011/10/22/will usher-have-to-pay-up-for-stealing-hit-song/ (site last visited Dec. 1, 2011)
(presenting online audio of disputed songs). Hence, the above caption
has been amended accordingly; the docket and all subsequent filings
shall conform.
Robbins has supplemented his prior pleadings in an effort to
meet the copyright-infringement, pleading requirements set forth in
this Court’s last Order, doc. 10, reported at 2011 WL 5840257, where
the Court screened his case pursuant to 28 U.S.C. § 1915(e)(2) for
frivolity. Doc. 12. There the Court recounted his allegations
that he owns and has registered his copyright in the “Comein
Over” song. 1 Doc. 3 at 1; doc. 1-1 at 1 (copyright registration).
Prima facie copyright ownership facts are established by a successful copyright
application:
1
If after examination the Register of Copyrights determines that the material
deposited constitutes copyrightable subject matter and that the other legal and
formal requirements of the Copyright Act have been met, the Register
registers the claim and issues to the applicant a certificate of registration
under the seal of the Copyright Office. The certificate contains the information
given in the application, together with the number and effective date of the
registration.
In any judicial proceedings, if registration is made within five years after first
publication of the work, the certificate of registration constitutes prima facie
evidence of the validity of the copyrights and the facts stated in the certificate,
including such facts as ownership, the identification of the author, and the
statement that the entire work was made for hire, that the work is
copyrightable, and that it was original.
8 AM . JUR. 2 D C OPYRIGHT AND L ITERARY P ROPERTY § 143 (Nov. 2011) (footnotes
omitted). “[N]o action for infringement of the copyright in any work shall be
instituted until registration of the copyright claim has been made in accordance with
this title.” 17 U.S.C. § 411(a). Robbins has tendered his. Doc. 1-1. Holders may be
challenged for failing to deposit with the Copyright Office a copy (or copies, see 17
U.S.C. § 408) of their published work. Hackett v. Feeney, 2011 WL 4007531 at * 7 (D.
Nev. Sep. 8, 2011) (“For a valid copyright registration, an applicant must deposit as a
part of his application a copy or copies of the work.”); Samad Bros., Inc. v. Bokara
Rug Co., Inc., 2011 WL 4357188 at * 6 (S.D.N.Y. Sep. 19, 2011); see generally 16
2
Through the documentation he submits he seems to be alleging
that defendant Usher had access to it and infringed it (via “ring
tone” and other performance forms) with his “Daddy’s Home”
song. Doc. 1-1 at 7; doc. 3 at 1. He also attaches a Wikipedia
description of Usher’s “Daddy’s Home” song, and includes his
MySpace pages purporting to show how Usher had access to his
song (this is not clear, however, from the face of that exhibit).
Doc. 1-1 at 7-8. Finally, Robbins furnishes a Wikipedia print-out
showing that “LaFace Records” represents Usher (he has named
LaFace as a defendant). Doc. 1-1 at 10. He pursues profitsbased and possibly other forms of damages. See doc. 1 at 5 (“A
relief of $12,000,000”); id. (“Mr. Usher and his label has sold
over 7,000,000 units/tracks and ringtones combined and made a
profit of over [$]20,000,000 in R [sic]”); see also doc. 3 at 1.
Doc. 10 at 5-6 (footnote added).
But Robbins failed to plead facts showing substantial similarity
between his claimed work and Usher’s. Id. at 6; see also Airframe
Systems, Inc. v. L-3 Communications Corp., 658 F.3d 100, 106 (1st Cir.
2011). He mentioned “evidence of copying in a Disk submitted” (doc. 3
at 2) but neither furnished that disk nor pled facts about its contents.
Also, his copyright registration’s effective date is May 12, 2011, doc. 1-1
at 1, yet he never said when Usher released his “Daddy’s Home” song.
So, the Court told him to supply that critical fact, too. Doc. 10 at 7.
In response, Robbins has burdened this Court with pages of
A.L.R. Fed. 595 § 2(b); 18 A M . JUR. 2 D C OPYRIGHT AND L ITERARY P ROPERTY § 137
(Nov. 2011). But that is not a pleading requirement.
indecipherable ramblings, doc. 12 at 1-7, followed by passages that,
liberally construed, 2 seem to address the Court’s requirements, including
a repeat of how Usher had access to his song. In raw, unedited form:
(1) How Usher had access-I sent a communication request - to usher’s my-space page it was
confirmed; and he was added to Top Friends to work with in the
future: Demonstration: (citied) in Exhibit’s.
(2) Merit-Pleading Rule 8’s (a)(1)(2)(3)
See Exhibit’s Plaintiff’s My-space Page Printout showing
Fact/List of friends/Usher citied as friend on Plaintiff’s myspace.com page.
(3) Merit-Pleading 17 U.S.C. Section 101 1st work (citied)- See
Exhibit Plaintiff music upload dated citied {6-13-2009}--Vs.
Ushers Released date {Daddy’s Home Song}--See Usher
Wikipedia Article Afrimed-- Citied) Dec-8-2009 of his releaseAdopting and Pleading 17 U.S.C. 101 1st work by Plaintiff
(citied) Usher song Registration is Not Valid (citied) copying
from the Originals of the Plaintiff Pleading 17 U.S.C. Section
101 1st work (citied).
Copying can be proven with indirect evidence that the defendant
had access (citied) on Plaintiff My-space friend list access- to the
allegedly-infringed work and there was a substantial similarity
between the two works (citied) in the Disk Submitted Kohus,328
F.3d at 854.
Doc. 12 at 8-9; see also id. at 10 1111 (1)-(3). Under a “Substantial
“Pleadings filed by pro se litigants are entitled to a liberal construction. United
States v. Webb, 565 F.3d 789, 792 (11th Cir. 2009).” United States v. Connolly, 2011
WL 5429089 at * 1 (11th Cir. Nov. 10, 2011).
2
4
Similarity” section of his response, plaintiff provides a legal recitation,
followed by this:
(1) Ushers bells- (citied) playin @ {0:02} plays the same
(Performance) – structure texture and beat pulse of the
Plaintiff's ©.ed, Sound Recording Granted by Law Title 17,
U.S.0 Section 112, Pub. L. No 94-553
(2) @ Time started {2:00-2:20} as u lisin within the time pleaded
are facts- showing substantial similarity- between- Plaintiffs
{Claimed} work and Ushers work 328 F. 3d at 854.
(3) @ {2:09-2:20} when my music/SR turns down- (citied)
Ushers –Brass_ plays the same as Plaintiff's {Claimed} Originals
sound structure-performance-harmony-rhythm-melody-an–exact
replica of the Original based "piracy" with "similar" exact replica
of Plaintiffs ©.ed, work 1st work Section 101 (citied) lqbal, 556
U.S., 129 S. t. 1937, 1949-50
*
* *
*
Doc. 12 at 9; see also id. ITIT (1)-(5).
Only by a generous application of the liberal pleading standard can
plaintiff’s mélange of words, non-words, typographical symbols, and case
citation fragments be construed to plead a copyright infringement claim.
That effort is assisted by his furnished copyright registration, showing a
2008 “Year of Completion” for “Comein Over.” Doc. 1-1 at 1. The
registration’s “Author” section shows Robbins’ full name, followed by
this: “Author Created: sound recording, performance, production, music,
lyrics.” Id.; see also Curington v. UMG Recordings, Inc., 2011 WL
3568278 at * 2 (M.D.N.C. Aug. 12, 2011) (noting copyright-protection
distinctions between “sound recording” and “musical composition”
productions). Robbins thus pleads that he registered his song, Usher
infringed (via 2009 internet upload) his pre-registration copyright rights
in it, and continues to do so post-registration.
The Court therefore will “green-light” this case. The Clerk is
therefore DIRECTED to forward the complaint, as amended, and a copy
of this Order to the Marshal with instructions to serve defendant.
Plaintiff’s Motion to Report on Case (doc. 13) is DENIED.
SO ORDERED this 1st day of December, 2011.
._-,.-7
.94
1
,Th
UNiTED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
6
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